Sri M G Krishnaji Rao vs Smt Razia Begum on 23 June, 2014

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Karnataka High Court

Sri M G Krishnaji Rao vs Smt Razia Begum on 23 June, 2014

Bench: Dilip B Bhosale

                             1


       IN THE HIGH COURT OF KARNATAKA AT BANGALORE

             DATED THIS THE 23rd DAY OF JUNE 2014

                           BEFORE

          THE HON'BLE MR. JUSTICE DILIP B BHOSALE

                 W.P.NO.50916/2013 (GM-CPC)

BETWEEN

1.   SRI M G KRISHNAJI RAO
     AGED ABOUT 74 YEARS

2.   SRI M G RAJA RAO
     AGED ABOUT 72 YEARS

3.   SRI M G HUNNUJI RAO
     SINCE DECEASED BY LRS

     3(a) SMT SARASWATHI BAI
          W/O LATE HUNNUJI RAO
          AGED ABOUT 60 YEARS

     3(b) SRI H SHAMRAO
          S/O LATE HUNNUJI RAO
          AGED ABOUT 43 YEARS

     3(c) SRI H SACHIN RAO
          S/O LATE HUNNUJI RAO
          AGED ABOUT 35 YEARS

4.   SRI M G CHANDROJI RAO
     AGED ABOUT 63 YEARS

5.   SRI M G NARAYANAJI RAO
     AGED ABOUT 60 YEARS
                              2


      PETITIONERS NO.1 TO 5 ARE SONS OF
      LATE M H GIRIMAJI RAO
      R/A NO.69, KADUGVONDANAHALLI
      ARABIC COLLEGE POST
      BANGALORE-560045                     ... PETITIONERS

(BY SRI R VISHWANATH RAO, ADV.,)

AND

1.    SMT RAZIA BEGUM
      W/O LATE S AMEER BASHA
      AGED ABOUT 63 YEARS

2.    SRI RAFIQ AHMED
      S/O LATE S AMEER BASHA
      AGED ABOUT 44 YEARS

      BOTHA ARE R/A NO.385
      MALAYALAM STREET
      VANAMABADI
      TAMIL NADU-632001

3.    SRI B M E RAHAMATHULLA KHAN
      S/O INAYATHULLA KHAN
      AGED ABOUT 34 YEARS
      R/A NO.19, PILLANNA GARDEN
      P & T LAYOUT, BANGALORE-560045      ... RESPONDENTS

(BY SRI ASHOK HARNAHALLI, SR. COUNSEL FOR SRI S V BHAT, ADV., FOR R3;

R1 & R2 - SERVICE HELD SUFFICIENT) THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OR SET ASIDE THE ORDERS DATED 28.9.2013 PASSED IN EX.NO.1714/2013 PENDING ON THE FILE OF THE LEARNED XIV ACCJ, BANGALORE AGAINST THE PETITIONERS VIDE ANN-A AND ETC. 3

THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

PC:

Heard learned counsel for the parties. The petitioners have challenged the following order: "Later Sri S.V.B.Advocate has filed vakalath for one Sri.V.M.V.Rahamathulla Khan and IA NO.2 U/o.21 rule 99 R/w. Sec.151 of CPC praying to take on record the objection of objector about his wrong dispossession from the schedule property by the decree holder and also prayed to hold an enquiry with regard to his claim about the ownership of the schedule property and restoration of possession and to award compensation for losses suffered due to wrong dispossession.

The decree holders and their counsel called out, absent. No representation.

In view of the objector's application the case is reopened. Thus, it is just and necessary to issue notice of IA NO.2 to the decree holder."

This order was passed on the application filed by respondent No.3-obstructor. Before passing the order, on the same day, perhaps in the morning session, the following order was passed :

"Case called out, Sri R.V.R.Advocate for decree holder has filed memo stating that the 4 execution petition may be closed as fully satisfied. Heard. Perused the report submitted by the bailiff.

In view of the memo the execution petition is closed as fully satisfied."

3. From perusal of the first order, it appears that the petitioner-decreeholders did not have any reason or occasion to know about the application (I.A.No.2/2002) filed by respondent No.3-obstructor under Order 21 Rule 99 read with Section 151 of CPC. In view thereof, the learned Judge ought to have simply issued notice to the decreeholders without reopening the case.

4. Learned Senior Advocate appearing for the respondent fairly states that respondent No.3 has no objection, if all the issues including whether the case could be reopened, as prayed for, are kept open to be considered at the stage of hearing of I.A.No.2 in Execution No.1714/2013. Learned counsel for the petitioners also has no objection for passing such order. 5

5. Hence, I dispose of this writ petition by the following order:

i) The Court below shall consider and decide I.A.No.2 filed by respondent No.3-obstructor, under Order 21 Rule 99 read with Section 151 of CPC, afresh overlooking the part of the order by which the case has been reopened.

ii) All contentions of the parties, including the petitioners' contention that case cannot be reopened are kept open.

iii) While passing this order I shall not be understood to have examined merits of the case and the trial Court shall deal with I.A.No.2 on merits in accordance with law.

iv) Learned counsel for the petitioners, on instructions, states that the petitioners shall not make any further construction until disposal of I.A.No.2. or alienate the suit property till then. The statement is accepted. 6

v) The Court below shall endeavour to dispose I.A.NO.2, as expeditiously as possible and preferably within a period of six months from the date of receipt of this order.

Sd/-

JUDGE Ia

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